Firefighters’ lawsuit tests use of race in hiring, promotions

Frank Ricci, a firefighter from New Haven, Conn., spent months listening to study tapes as he drove to work and in the evenings, preparing for a promotional test. It was a once-a-decade chance to move up to a command rank in the fire department.

Ricci earned a top score – but no promotion.

The city had coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Since there were only 15 vacancies in the top ranks of the fire department, it looked as though no blacks would be promoted.

After a racially charged debate that stretched over four hearings, the city’s civil service board rejected the test scores five years ago and promoted no one.

“To have the city throw it out because you’re white or because you’re not African-American is insulting,” Ricci said when he and 19 other firefighters sued the city for race discrimination.

The Ricci case, due to be argued at the U.S. Supreme Court this month, is the first to come before the court under Chief Justice John G. Roberts, Jr. that broadly raises the issue of race in the workplace. The outcome could reshape hiring and promotion policies for millions of the nation’s public employees – and possibly for private employers as well. And Roberts, leading a five-justice majority, has made clear he believes it is time to forbid the use of race as a factor in the government’s decisions.

The Obama administration, taking its first stand on race and civil rights, sided with the city officials and said they were justified in dropping the test if it had “gross exclusionary effects on minorities.” While blacks make up about 31 percent of New Haven’s 221 firefighters, 15 percent are officers – eight of 42 lieutenants and one of 18 captains.

At issue in the New Haven case is whether an employer can weigh the racial impact of a hiring or promotional standard.

Lawyers for the firefighters say the city violated the Constitution’s guarantee of equal protection of the laws as well as the Civil Rights Act of 1964 when it threw out the test scores. They say the law forbids employers from “discriminating against one group of individuals to benefit another group on account of race.” The white firefighters “ask nothing more than the basic right to be judged by who they are and what they have accomplished, not by the color of their skin,” they say.

But the president of the NAACP Legal Defense Fund said this claim ignores the history of discrimination that excluded blacks from fire and police departments. In many cities, including New Haven, the “fire department was the preserve of white males,” said John Payton, who is also counsel for the LDF. “African-Americans were virtually excluded.”

That’s why cities across the country have fought discrimination lawsuits involving their fire departments, he said. Many of these cases have stretched over decades. In the 1970s, civil-rights lawyers sued many cities because minorities were excluded for city jobs. In response, cities often signed consent decrees promising to hire and promote more blacks. However, in the decades since then, cities have fought long-running lawsuits from whites who say they were victims of reverse discrimination.

Last month, the city of Chicago quietly paid a $6 million settlement to 75 white firefighters who said they lost promotions when test scores were scrapped in 1986.

“This was very similar to what is before the court in the Connecticut case,” said Linda Friedman, a Chicago lawyer for the firefighters there. “The city of Chicago saw itself in a predicament. They thought they could be sued by blacks if they used the exam. And they were sued (by whites) when they decided against using the exam scores.”

These cases highlight a conflict in federal civil rights law. On the one hand, the Constitution and the Title VII of the Civil Rights Act of 1964 say employers may not discriminate against persons because of their race.

However, employers also have been told they may not use hiring or promotional standards – including tests – that have a “disparate impact” on minorities. The court adopted this rule in a 1971 case. Congress added it to federal law in 1991. The new provision said employers may not use a job standard that has a “disparate impact on the basis of race” unless it is “required by business necessity.” For example, it is not certain that the knowledge tested by the firefighter’s exam was required to be lieutenant in the fire department.

In New Haven, the city’s lawyers cited this “disparate impact” rule as their reason for scrapping the test scores in 2004.

“I understand their disappointment,” Victor Bolden, the city’s corporation counsel, said in an interview, referring to the white firefighters. “But this test had an adverse impact (on minorities). The city did the right thing. It made a measured response in a difficult circumstance. Someone was going to be disappointed, and we could be sued either way.”

Payton stressed that New Haven had not rejected the white firefighters because of their race, but rather rejected the use of the written exam as the sole determinant of who would be promoted. “New Haven ought to be able to go back to the drawing board,” he said, to devise a better and fairer promotion system. New Haven is a racially mixed city of 124,000 people. About 44 percent of its residents are white, 37 percent black and 21 percent Latino.

The Obama administration told the court that New Haven officials were justified in scrapping the test results if they had “a reasonable belief” they could be sued by blacks for discrimination. Lawyers for the white firefighters insist that “racial politics” and “cronyism” were behind the city’s decision. They said Boise Kimber, an outspoken black minister, was a key political ally of Mayor John DeStefano, and he pressured the city civil service board into rejecting the test results.

“You have a responsibility of making this Fire Department look like New Haven,” Kimber told the board in one heated session. “And it ain’t looking like New Haven.”

Citing the “voluminous record in this case,” the Obama administration says the court should send the case back to a judge in Connecticut to consider whether the white firefighters were victims of racial politics.

Yale Law Professor Drew Days, a former chief of the Justice Department’s civil rights division, said he was surprised the justices agreed to hear the case of Ricci v. DeStefano. Now that they have, he added, a ruling for Ricci “could have very far- reaching consequences because it may well apply to all employers.”